The Political Dimension of Aboriginal Rights

1989

Osgoode Hall Law Journal, 1998

2014

From Recognition to Reconciliation, 2016

Are aboriginal rights historical rights-rights that gained their basic form in the distant past? Or are they generative rights-rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 1 provides little guidance on the point, referring ambiguously to Aexisting aboriginal and treaty rights@. 2 In the Van der Peet case, 3 decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court=s reasoning reveals, this approach left much to be desired. In his majority opinion, Chief Justice Antonio Lamer holds that s. 35(1) is animated by two main purposes: recognition and reconciliation. 4 With respect to the first, he argues that the doctrine of aboriginal rights exists because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries. It is this fact that distinguishes aboriginal peoples from all other groups in Canadian society and mandates their special legal and constitutional status. So a major purpose of s. 35(1) is to recognize the prior occupation of aboriginal peoples. 5 However, recognition is not the sole purpose of the section, which also aims to secure reconciliation between indigenous peoples and the Crown. Lamer C.J. notes that the essence of aboriginal rights lies in their bridging of aboriginal and non-aboriginal cultures, so that the law of aboriginal rights is neither entirely English nor aboriginal in origin: it is a form of intersocietal law

2000

Bibliothèque nationale du Canada Acquisitions and Acquisitions et Bibliographie Services services bibliographiques 395 Wellington Street 395, rue Wellington OttawsON K1A ON4

Alberta Law Review, 2014

This article examines the past 100 years of Aboriginal litigation at the Alberta Court of Appeal. It begins by describing pre-Charter cases related to historical hunting rights. It then examines cases related to division of power issues before describing cases concerning religious freedom, freedom to associate, and equality rights. Afterwards, cases concerning post-Charter Aboriginal and Métis hunting rights are discussed. Finally, the concepts of honour of the Crown and fiduciary duty are considered.

In this paper, I interrogate the forms of recognition that are produced through the Gitxsan and Witsuwit’en hereditary chiefs’ efforts to litigate claims to territorial title and jurisdiction within the Canadian court system in the 1980s and 1990s. Through the case known as Delgamuukw v. the Queen, Gitxsan and Witsuwit’en hereditary chiefs sought to deploy evidence from their distinct legal tradi- tions in court to prove their continued ownership and governance of their traditional lands. The case thus principally involved questions of the status of Indigenous traditional legal authorities and legal orders within Canadian law. Although the lower courts ruled against the Gitxsan and Witsuwit’en, and the Supreme Court of Canada determined the matter had been mistried, I argue the case was nonetheless productive of new relations between Indigenous and Canadian legal authorities. This paper argues that courtroom encounters enmeshed Indigenous and colonial authorities in a complex skein of relations that continues to unravel in new ways. Responding to Gitxsan and Witsuwit’en litigation efforts, the courts recognized the authority of traditional Indigenous leaders to speak for their communities and make claims vis-à-vis the Canadian state. This was a rupture with state policy that had heretofore sought to displace Indigenous hereditary leadership with imposed models of democratic band governance. By recognizing Indigenous traditional authorities as domestic polities, the court reinvented colonial structures of authority. Thus, alongside the recognition of Indigenous traditional political life, the judiciary extended new forms of colonial sovereign authority over it. But if Indigenous traditional political life was reconstituted under the aegis of the colonial sovereign, the judicial emplacement of Canadian sovereignty in relation to Indigeneity also reconfigured the meaning of Canadian sovereignty. The court determined that constitutionally the exercise of Canadian sovereignty had to be reconciled with the continued existence of Indigenous political communities.

Review of Constitutional Studies, 2023

Aboriginal law in Canada is caught in a colonial double-bind. On the one hand, courts have acknowledged the pre-existing sovereignty of Indigenous peoples as the source of section 35 rights. On the other hand, the courts also find that Crown sovereignty is bundled together with legislative power and underlying title. The latter is treated as a non-justiciable presumption. This article aims to provide the judiciary with a way to deal with the double bind using the legal tools they already have at their disposal. We begin by contrasting two interpretive approaches courts use to legally characterize the constitutional relationship between the Crown and Indigenous peoples. We label these approaches as narrow and adaptive. We argue that by embracing an adaptive reading of the constitutional relationship, the courts can help clear the way for an inclusive form of treaty federalism that allows a culture of justification to flourish across diverse legalities in Canada

A Simple Common Lawyer: Essays in Honour of Michael Taggart, 2009

Published in the collection of essays in festschriften for the magnificent Mike Taggart, produced in record time by Grant Huscroft, David Dyzenhaus (editors) and Richard Hart (publisher).

2007

The Dalhousie Law Journal, 1956

2009

and resources ignores the fact that the law is already there -establishing baselines, defining rights, forming and maintaining a range of interests at stake, and actively constituting the relative power of the parties. Instead of whether the law should intervene, this narrative asks on whose behalf should the law intervene." 1 Twenty five years after the entrenchment of Aboriginal treaty rights in the Canadian Constitution, and more than 240 years since the Royal Proclamation of 1763 declared that treaty-making would be the legal framework for the future settlement of immigrants to North America, large areas of the law in relation to First Nation treaties remain undeveloped. In Canada, the first two centuries of judicial treatment of Aboriginal treaties saw treaty promises, as enforceable legal rights, virtually ignored by the courts. 2 Consider two historical fact situations. First, in England a pawn broker refuses to return a customer's goods unless the customer pays an exorbitant and illegal surcharge. The customer desperately wants his property and submits to the pawnbroker's demands. Since the constitutional entrenchment of treaty rights in 1982, the Supreme Court of Canada has sought to define a path that recognizes the uniqueness of the context of treatymaking and the sui generis nature of treaty promises. While this approach has the merit of acknowledging that it would be inappropriate to import, holus-bolus, principles of law developed in other contexts, it creates a problem. Outside of the areas of treaty law focused on by the Supreme Court of Canada (primarily questions of treaty interpretation and the resolution of conflicts between treaty terms and the general laws of the land) the parties have little guidance as to how the courts might address their treaty disputes. 3 Let us term this Situation A. Second, in Situation B, a government official suggests to Anishinabek leaders at Manitoulin Island that unless they surrender one and a half million acres of their ancestral lands, he will be unable to prevent settlers from illegally encroaching on their lands. 4 This article explores why Canadian law has developed principles for resolving the claim in Situation A, yet provides no corresponding framework for the resolution of Situation B. Both situations appear to raise the same The Anishinabek reluctantly submit, exchanging their land for a vague assurance of future consideration. Both Situation A and Situation B occurred in a common law jurisdiction. For Situation A, which occurred in the eighteenth century, the customer's lawyers would have known, at the time, the legal framework under which their client's rights would be adjudged. Further, although the law has evolved since then, any first year law student today could advise the plaintiff as to the legal rules relevant to his grievance. For Situation B, however, the applicable law in the first half of nineteenth century was utterly unclear -and it remains so today. The author would like to thank Cate Jones Grainger, my research student, and Professors Gerald Fridman, Berend Hovius and Jason Neyers, all of whom kindly commented on earlier drafts of this paper. Any errors that may remain are, of course, my own.

2007

Are aboriginal rights historical rights -- rights that gained their basic form in the distant past? Or are they generative rights -- rights that, although rooted in the past, have the capacity to renew themselves, as organic entities that grow and change? Section 35(1) of the Constitution Act, 1982 provides little guidance on the point, referring ambiguously to "existing aboriginal and treaty rights". In the Van der Peet case, decided in 1996, the Supreme Court of Canada characterized aboriginal rights primarily as historical rights, moulded by the customs and practices of aboriginal groups at the time of European contact, with only a modest ability to evolve. However, as a brief review of the Court's reasoning reveals, this approach left much to be desired. Nevertheless, in the decade since the Van der Peet case was decided, the Supreme Court has shown mounting signs of discomfort with the test laid down there. In a series of important decisions, it has quietly initia...

And so the ugly events of recent history are buried behind a wall of illusion-the illusion that progressive thinking and improved attitudes have brought fair treatment to Canada's native people. Occasionally, a twentieth-century tragedy-a Grassy Narrows or a Lubicon Lake-is revealed and debated. Yet it is treated as an isolated event, a curious aberration, a temporary lapse in the judgment of the administrators and leaders of our civilized society. There is rarely any understanding of the sheer number of similar events taking place in Aboriginal communities across the country. And few Canadians realize the connections between all these stories-the recurring pattern of the disintegration of entire communities as a direct consequence of assaults made by the institutions of modern Canadian society. 5 We cannot, in the course of this paper, reiterate the full story of this ongoing dispossession and its resultant resistance. However, it is necessary to emphasize that "Aboriginal rights disputes" are anything but new. This is an old story. They have occurred in practically every part of Ontario. We will illustrate the story with a few key examples spanning two hundred years of Ontario's history: the Six Nations lands disputes (1784-1860);